Monday, December 26th, 2011...7:55 pm

Between Winning and Well-Being

One of the shared attractions of football and hockey is that they are both are physical and fast-paced sports. Physical contact, often with violent force, is an integral part of each game, one that has been widely marketed and glamorized. The courts have even made it clear that these are not games for those with weak constitutions; referring to the nature of the NFL, the trial court held that the league “has substituted the morality of the battlefield for that of the playing field, and the ‘restraints of civilization’ have been left on the sidelines.” Hackbart v. Cincinnati Bengals, Inc. 435 F.Supp. 352 (D.Colo. 1977). Similar cases have been seen for incidents of on-ice stick swinging, and even in the last year when the Quebec police finally decided not to press criminal charges against Boston Bruins captain Zdeno Chara for shoving Montreal Canadiens forward Max Pacioretty into a stanchion and fracturing a vertebra in his neck. Mostly, incidents resulting from the violent nature of these sports have not ended up in court. There are exceptions, including the on-going civil action brought by Steve Moore (formerly of the Colorado Avalanche, who is still unable to play) against Todd Bertuzzi (of the Vancouver Canucks at the time of the incident). Violence is seen as an unavoidable part of hockey and football. The leagues, however, do not seem to be immune from actions regarding the injuries that occur within the normal rules of the game.

The current hot button topic is concussions. A quick look at the injured list for the NHL, as of today, includes Flyers captain Chris Pronger, Kris Letang, Marc Staal, Jeff Skinner, Milan Michalek (the league’s top scorer at the time of his concussion), Colby Armstrong, and Penguins captain and league poster-boy Sidney Crosby. The league’s current point leader, Claude Giroux, recently came back from a concussion. Similarly, in the NFL, the list includes Kevin Kolb, Chris Harris, and Colt McCoy, among many others. Colt McCoy and Colby Armstrong are particularly interesting individuals because, despite their respective league’s concussion protocols, they continued to play
in the game in which they were injured without being evaluated. In competitive sports where every minute of playing time makes a difference in getting signed, getting new contracts, and keeping their place on a team, players have learned not to complain of injury so that the coach does not sit them and they are not replaced by someone else (see: Drew Bledsoe and Tom Brady). The question is whether the leagues should have known, or did know, better but were too caught up in the business of sport to prioritize the well-being of their players.

Early this month a dozen retired NFL players sued the league, accusing it and its teams of repeatedly giving the players the NSAID Toradol, which inhibits platelet formation and can increase bleeding risk, in addition to masking pain. The suit alleges that the teams provided players with Toradol before and during games, making it harder for players to recognize when they have sustained serious injuries. The suit also alleges that the NFL suppressed evidence that repeated concussions can cause lasting and serious brain injuries, and failed to inform its players of the true risk of harm from playing their sport. The league of course, has a number of arguments on its side: assumption of risk, lack of causation (does playing in the NFL really cause head injuries?), and that the claim is barred under the collective bargaining agreement where the players should have negotiated for additional protection. On Thursday, December 23, nearly two-dozen NFL players filed a separate suit alleging that the league deliberately omitted or concealed evidence that concussions were linked to permanent neurological conditions. Suits over whether sports leagues knew of the risks of concussions and
failed to inform or take actions to protect players are growing in number, including other suits in the NFL and a recent class action against the NCAA. The NHL has not yet seen a similar suit, but it is certainly not immune to these actions.

Of all of the professional sports leagues, the NHL and the NFL have been leaders in concussion research, but clearly not enough has happened to prevent concussions. Celebrated enforcers have recently died, including some, such as Bob Probert and Derek Boogaard, who donated their brains to Boston University’s Center for the Study of Traumatic Encephalopathy, revealing extensive signs that the players suffered from chronic traumatic encephalopathy (CTE). Boogaard’s tests are still pending, but the expected results are not optimistic. So far the NHL has been fortunate in not being the beneficiary of types of lawsuits that other leagues are facing regarding their inaction toward concussions. In part, this is because the NHL has been incredibly proactive in their approach to the problem and consistently updates its rules and equipment standards to attempt to best protect its players. Most recently, the improved but imperfect Rule 48 banned targeted headshots. The league also adopted a new concussion policy requiring a “quiet room” evaluation by trainers of any player suspected to have sustained a concussion. As seen with Colby Armstrong, the NHL system is not
foolproof but certainly an improvement. Despite its improved concussion protocols including sitting concussed players for the remainder of the practice or game in which they show symptoms, the NFL has also had its slip-ups – notably with Colt McCoy. The CTE rate between hockey and football is among the highest in sports, though still trails boxing.

Undoubtedly, sports are a tremendously profitable industry. The suit against the NFL repeatedly calls attention to how much money the league makes and how much money each individual franchise is worth. Hockey is smaller, but its highest valued teams are each worth around $500 million. While making money is often going to be the primary interest for these teams, and players can be viewed as replaceable commodities, having star players lose time to injury is something that costs the leagues dearly. The leagues are willing to change their rules in order to protect their stars, as shown in the 2009 creation of the Brady Rule, protecting quarterbacks from hits to the knees after Tom Brady returned from knee surgery only to be targeted in the knees.

Leagues regulate everything from the color of the cleat their players wear to the minute aspects of each game. One of the consistently raised issues surrounding concussions is that their rise is tied to the improvement in protective equipment, particularly helmets in football and shoulder pads in hockey. Football helmet manufacturers have focused on increasing padding within a hard plastic shell, while hockey equipment manufacturers have inserted similarly constructed hard plastic shoulder caps into shoulder pads. The hard pieces provide players with a greater sense of protection, allowing them to take greater risks when playing. These risks have ended up manifesting
as injuries to other players, specifically in the form of concussions. Given its powers to make or change rules, a league could easily outlaw equipment found to contribute to concussions. The NHL is currently investigating and actively testing new types of shoulder pads designed to reduce the risk of concussion when a shoulder meets a head during gameplay. Can the leagues do more to protect their players? Certainly they have the incentive to do so since these stars draw the fans that bring the leagues money. Should the leagues do more? Absolutely. For as long as the leagues continue to allow the equipment and behavior that leads to concussions and lasting neurological conditions, they should expect to spend more time in court defending their inaction. The recent actions against the NFL are likely only a sign of things to come for both the NFL and the NHL.

Dave Johnson is a contributor to the William & Mary Sports & Entertainment Law Society Blog. He can be reached at dcjohnson@email.wm.edu, or below in the comments.